Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No’s: UI-2022-001719
& UI-2022-001722
FtT No’s: HU/52756/2021
& HU/52757/2021
IA/07289/2021 & IA/07631/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

O & M K
(anonymity order made)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

For the Appellants: Mr A Caskie, Advocate, instructed by Duheric & Co, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 11 January and 12 April 2023

DECISION AND REASONS
1. The appellants are a mother and her son. He was a child at the time of application to the ECO but is now an adult. They are citizens of Syria, residing in Iraq. The sponsor is N K, the daughter of the first and sister of the second appellant.
2. The sponsor is a refugee in the UK, along with her three children.
3. The ECO declined to grant entry clearance for family reunion.
4. FtT Judge Doyle refused the appellants’ appeals by a decision dated 15 March 2022.
5. The appellants sought permission to appeal to the UT.
6. The FtT found there not to be family life for article 8 purposes among the sponsor and the appellants, because the sponsor had established a separate family life since her marriage 15 years previously. The grounds contended, among other matters, that the FtT overlooked evidence that the sponsor had lived mainly with her original family, not with her husband.
7. FtT Judge Frantzis (without restricting the grant) gave permission on the view that there had arguably been a factual error amounting to an error of law.
8. The case came before me (sitting with Deputy Judge Farrelly) on 11 January 2023 when Mr Mullen conceded, fairly and correctly, that there had been an error, as above, which required the decision to be set aside.
9. We were also satisfied, and Mr Mullen also agreed, that the FtT erred in its interpretation of paragraph 319X of the immigration rules. That provision is (or was) concerned not with applicants who are the children of refugees in the UK but with those who are related in other ways. We might not have found that error to be material, but there was no need to resolve the point.
10. Parties agreed that the case should be retained in the UT for further decision, with directions for filing of any further materials. The respondent was also directed to advise, not less than 14 days after the respondent complied with directions, whether cross-examination was proposed; failing which, no interpreter was to be booked.
11. The UT’s decision dated 12 January 2023 gave effect to the above. The case came before me, sitting alone, for further decision. The appellants had lodged a consolidated inventory of old and new materials. There were no further materials from the respondent. No cross-examination was proposed. The various statements were all held to have been adopted as evidence. The hearing proceeded on submissions only.
12. The appellants’ solicitors have made great efforts to assemble an eventually overwhelming body of evidence on their behalf. The respondent has had the opportunity to consider all of that, and considering the development of the case, there is no need to set it out in detail. The facts are not in dispute, so this decision may be stated quite succinctly.
13. The sponsor and her children came to the UK with the father of the family. He left them shortly thereafter. He sees little of the children, does not assist with their unusually intense care needs, and has an influence which is generally negative, or even abusive. (He is in another relationship and regards himself as “divorced”, although it is doubtful whether that is his status in the law of this jurisdiction.) There is a long history of domestic violence. He has abused the first appellant throughout their marriage. He was convicted of an assault on her in the Sheriff Court in 2019. The Court also made a non-harassment order (now expired).
14. It is now accepted that the sponsor, since her marriage, and the children, since their birth, lived mainly with the extended family of the sponsor and not with their husband and father.
15. Mr Caskie contended that the second appellant should succeed in terms of paragraph 319X. I was not taken directly to that provision. The FtT was wrong to consider that the second appellant was not in the category envisaged, but the rules appear to have been amended while this case has been going on. It is not clear to me that there is a current direct equivalent. In any event, the requirement founded upon was “serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care”. I am satisfied that serious and compelling family considerations exist. The focus of this case, however, is on considerations affecting the sponsor and her children rather than the second appellant. The contention is that exclusion is undesirable not so much in his interests as in the interests of others.
16. That distinction does not affect the outcome, as the primary focus is on the article 8 rights of the family members who are in the UK.
17. The further evidence assembled for re-making the decision shows that the sponsor’s large extended family has mainly re-settled in Germany, with a few remaining members due to move there shortly. Only her mother, father, and younger brother (the second appellant) will remain in Iraq. Her father does not intend to leave.
18. The sponsor and her children had unusually close relationships with the appellants before coming to the UK, due to the marital history. Relations have continued through constant communication since then.
19. The evidence shows that family life in terms of article 8 exists among the sponsor, her children and the two appellants. The issue is whether the refusals of entry clearance interfere to a disproportionate extent with that family life.
20. The respondent accepts that the requirements of the rules in terms of accommodation and maintenance are met.
21. The oldest and youngest of the sponsor’s children suffer from significant health problems. They require regular hospital treatment, sometimes urgently, and often overnight. (They qualify for Personal Independence Payments at the middle rate. The sponsor qualifies for Carer’s Allowance.)
22. The sponsor has been torn between attending to children in hospital and children at home. She is in immense difficulty in coping with their needs. Mr Caskie referred to the evidence in detail from the local authority, health services, and schools, all to powerful effect. I quote only the response on 22 December 2021 from the Refugee and Migration Programme Manager of the local authority to a question from her solicitors:
While in general terms the local authority could offer assistance with child care, the type of provision we could offer would be pre-booked child care sessions during typical service operation hours. This would be entirely inappropriate as the assistance [N K] requires is care for her other children when she has to respond to medical emergencies and hospitalisation [of the oldest child]. These occasions are … entirely unpredictable and can occur … late at night or at weekends when … we would be unable to respond quickly or flexibly enough.
23. The sponsor has had to resort to neighbours, for lack of any other resource, which has resulted in understandable strains. She has often had to travel with all her children to appointments and in emergencies, which is obviously difficult and disadvantageous all round.
24. The ECO’s decision says that the sponsor receives:
… the required level of care and treatment for herself and children [who] ... are being treated by the NHS and nothing suggests … this is going to stop. [The sponsor] will be able to access more care if required from the local authorities. Therefore I am not satisfied that you can meet the exceptional circumstances requirements.
25. It is true that NHS care will continue, but that is not the end of the case. The appellants have now shown the limits of what the family can expect, and the additional benefits their presence would bring.
26. The sponsor as a single parent of the children, two of whom need significantly more than the usual amount of care and support, has been stretched for several years to her limit. Her mother and brother are willing, indeed anxious, to assist her. Their presence would ease her burden greatly and make life easier not only for her but for all three children. It would be strongly in the interests of all three children for their family life to be expanded to include the appellants.
27. For avoidance of doubt, I note that the appellants in their applications and skeleton arguments (not in their latest submissions) founded upon the extra difficulties caused by the covid pandemic and on the “protective” factor of the presence of the second appellant. The first of those matters no longer applies. The second is not a matter which might significantly promote a right of entry to the UK. This decision is not based on either of those matters. It is based on exceptional circumstances, on unjustifiably harsh consequences of refusal on the sponsor and her children, and on the best interests of the children.
28. Due to the nature of the case and the involvement of children, the anonymity order made by the FtT is continued.
29. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants, the sponsor and her children are granted anonymity. No-one shall publish or reveal any information, including their names and addresses, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.
30. I am obliged to both representatives for their assistance in resolving the case.
31. The two appeals, as originally brought to the FtT, are allowed.

Hugh Macleman
Judge of the Upper Tribunal, Immigration and Asylum Chamber
13 April 2023